On August 30, 2024, the Supreme Court of Kenya delivered a landmark decision by admitting Dr. Gautam Bhatia as an amicus curiae in the consolidated petitions challenging the Finance Act, 2023.
This move represents a significant moment in the case, allowing Dr. Bhatia to bring his substantial expertise to the table on crucial issues related to public participation and legislative processes.
Dr. Bhatia, a distinguished constitutional scholar and practicing lawyer before the Supreme Court of India, had filed his application on August 22, 2024.
His written submissions, dated August 21, 2024, highlighted his extensive background in comparative constitutional law and his notable contributions to the field.
Bhatia’s work, including his influential book The Transformative Constitution: A Radical Biography in Nine Acts and forthcoming publications such as Law Making, Political Process, and the State: Transformative Constitutionalism in Kenya – 2010 – 2025, underscores his deep understanding of constitutional principles and public participation.
The Supreme Court’s decision to admit Bhatia as amicus curiae was delivered by a seven-judge bench led by Chief Justice Martha Koome.
“The Applicant’s Notice of Motion dated and filed on August 22 2024 by the intended amicus curiae is allowed. The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions,” the judges led by Koome ruled.
The ruling permits Bhatia to submit his amicus brief, which is expected to provide valuable insights into the legal questions central to the appeal.
However, Bhatia will not be allowed to make oral submissions during the hearings. This decision reflects the court’s acknowledgment of the relevance of Bhatia’s expertise to the complex issues at stake.
The consolidated petitions challenge the Finance Act, 2023, a piece of legislation that has sparked significant controversy.
The central issues in the appeal involve whether state organs are obligated to provide reasons for rejecting public suggestions during legislative processes and whether a Bill, after being substantively amended by the National Assembly, must be subjected to additional rounds of public participation.
These questions are crucial for ensuring transparency and accountability in Kenya’s legislative process.
In their ruling, the judges recognized that Bhatia’s brief addresses key legal points that align with the issues in dispute.
The court emphasized that Bhatia’s expertise in comparative constitutional law would be instrumental in navigating the intricate legal questions raised by the appeal.
Chief Justice Koome, who led the bench, noted that Bhatia’s contributions would greatly assist the court in understanding and resolving the significant legal and constitutional questions posed by the case.
Dr. Bhatia’s application was supported by his credentials as a leading scholar in constitutional law.
His impartiality and lack of any personal or pecuniary interest in the outcome of the appeal were also highlighted. Bhatia’s primary aim is to offer scholarly insights that will aid the court in resolving the pressing issues affecting Kenya’s legal and constitutional landscape.
The absence of objections from the parties involved in the consolidated appeals— including the Attorney General, the Treasury, the Kenya Revenue Authority (KRA), as well as individuals like Okiya Omtatah and Eliud Matindi, and the Law Society of Kenya (LSK)—suggests broad recognition of the value of Bhatia’s contributions.
The lack of opposition indicates a general consensus on the importance of incorporating expert perspectives into the court’s deliberations.
This development underscores the Supreme Court’s commitment to ensuring that a wide range of expert viewpoints are considered in its deliberations on critical constitutional matters.
By admitting Dr. Bhatia as amicus curiae, the court demonstrates its dedication to thorough and informed consideration of the issues at hand, reinforcing the importance of expertise in shaping Kenya’s legal and constitutional framework.
Dr. Bhatia’s involvement is expected to provide significant insights into the principles surrounding public participation and legislative processes, contributing to a more nuanced understanding of these crucial issues.
His participation as amicus curiae not only highlights the Supreme Court’s openness to international expertise but also underscores the ongoing commitment to upholding the values of transparency, accountability, and effective governance in Kenya’s legislative processes.
Bhatia’s contributions will likely play a pivotal role in shaping the court’s interpretation and application of constitutional values in Kenya.
